Beyond the permanent residence limbo

Further to your article of last Friday regarding the challenges faced by those applying for permanent residence, I write to offer a small correction and some perspective on the wider immigration debate.

First, although it is true that my wife was stymied by a legal technicality from taking up a position with a local not-for-profit group, the tale had a happier ending than the article implied. A brief appearance before the appropriate board was all that it took for them to approve the requested amendment to her occupation, allowing her to take up the role.

Indeed, a tale of unnecessary woe with a nonetheless happy ending is probably an accurate description of most expatriates’ worst encounters with our immigration system.

Our experience also speaks to a broader truth about this iceberg of dysfunction, the mere tip of which you described in your article: At the core of this and most other immigration issues is a law that is almost as unworkable as it is impervious to improvement.

And, while the system is frustrating for both employers and expatriates, the worst failing of our immigration law is that it does not work any better for Caymanians.

To support this, one need only ask any Caymanian whether they believe they have ever been discriminated against, and if so whether the immigration law offered any avenue for redress. It would be surprising if it had, since neither the law nor the regulations provide any clear mechanism for such a complaint let alone a mechanism for its timely resolution. The absence of such effective mechanisms has left a void filled by ever more Byzantine rules and ever more capriciously applied discretion.

There are a number of ways the government could address the gaping disconnect between the immigration law and the needs of the country. Allow me to outline two.

First, the government could acknowledge that the immigration process is not equipped to detect or prevent discrimination and instead establish a separate, independent body in the mold of the United States Equal Employment Opportunity Commission with a mandate to define, identify and eliminate discrimination.

In addition to enforcement, such a body could provide something equally effective and equally lacking in the current system: education. For small businesses with limited HR expertise, such training could, to give but one example, include best practice for eliminating unconscious bias in recruitment and selection. The general public would benefit from education as to what does and does not constitute evidence of discrimination on the part of employers.

To put it beyond the reach of political interference, such a commission should be established in the manner of the Office of the Auditor General under the purview of Her Excellency the Governor. If that requires a constitutional amendment, so be it.

Second, the government could accept that no system requiring the current degree of human intervention and discretion can be adequately scaled to fit our economy. It is an often-cited fact that the current system was designed in a long-gone era to cope with a few hundred work permit applications per year, rather than the 24,000 it is now expected to process.

Imagine if CIMA were to attempt to regulate our financial transactions the way the immigration law attempts to regulate employment of expatriates, requiring a lengthy application, assuming every transaction to be an attempted fraud and holding it up for weeks or even months until otherwise satisfied. No matter how many additional analysts CIMA hired, the system would quickly grind to a crawl, much as our over-burdened immigration system has. (To extend the analogy even further, it would be grossly unfair to blame the public servants charged with its administration for the inevitable dysfunction of such a system).

What CIMA does instead, is to issue clear rules and guidance, require companies to keep robust records, inspect those records periodically to ensure compliance, fine those found to have broken the rules and sanction egregious or repeat offenders. There is no reason such a system could not work equally well for immigration.

To be able to offer our people opportunities for good quality jobs and career advancement the Cayman Islands needs an immigration system that allows its private sector to thrive. At the same time Caymanians must be assured fair treatment by employers and an avenue for redress when required. These are not conflicting goals.